SMART v. THE STATE OF NEW YORK, #2007-029-053, Claim No. 98024

Synopsis

Claim by correctional facility inmate alleging that assault by other inmates was
the result of State negligence is dismissed. There was no proof the attack was
reasonably foreseeable or that security procedures in place were
insufficient.

This claim arises from an October 8, 1996 incident at Bedford Hills
Correctional Facility in which claimant was assaulted by two other inmates, an
event claimant attributes to negligence on the part of the State of New York.
Claimant has been an inmate at Bedford Hills Correctional Facility since 1993.
At the time of the subject incident, she was assigned as a teacher’s aide
in the Pre-GED class, and she arrived at her classroom at about 8:30 in the
morning. She testified that when she arrived at the classroom in the
facility’s School One building, someone told her that another inmate,
Ghania Miller, was looking for her. Sometime later in the morning, Ghania Miller
came into claimant’s classroom to use the bathroom. On her way to the
bathroom, Miller said to her “Mona is . . . moving, are you happy
now”? [1] Claimant stated she did not know
what Miller was talking about and didn’t say anything in response.

At about 9:50 a.m., claimant went outside to the school building’s yard
for what was described as “smoke break,”
[2] although she does not smoke. Claimant
testified that there could be up to 200 inmates attending classes in the school
building on a given morning and that there were typically 40 to 50 inmates,
smokers and nonsmokers alike, outside during the smoke break On her way out
she saw another inmate, Mona Graves, knocking on a door to the building.
Correction Officer Moultrie answered the door and asked Graves if she had a
pass. Claimant heard Graves say “no” and Officer Moultrie tell
Graves she was out of place. Claimant proceeded outside and heard the door
being locked behind her, as she was the last inmate to leave the building.

Shortly thereafter, claimant was standing near the bottom of the steps in the
yard talking to another inmate when Graves grabbed her by the hair and started
punching her. After being punched a number of times, claimant tried to
extricate herself and the two women fell to the ground, where claimant was
punched an additional ten to fifteen times. At some point, inmate Miller
approached and began kicking claimant. After a few minutes, she heard keys and
saw Officer Holmes attempting to separate Graves from claimant. Miller had run
back into the crowd. Then Miller came back, pushed Officer Holmes away and
punched claimant in the face. Another officer, Sergeant Richmond, arrived and
the incident ended.

On cross-examination, claimant indicated she had known Graves for years and
they were friendly, never having had any problems or disagreements. She knew
Miller less well but had no prior problems with her either. Although she
acknowledged that she did not feel threatened when Miller initially spoke to her
prior to the smoke break, she took off some jewelry and put it in her pocket.
She did not report Miller’s remarks to any of the security or educational
personnel working in the building that morning, although she had the opportunity
to do so. She also testified that although she had been threatened four to five
times a year and reported these threats to officers, she regularly refused to be
placed in protective custody (PC) because inmates in PC were perceived as weak
and easily victimized. She did allow that if she had ever felt in imminent
danger of harm she would have accepted placement in PC. Removing her jewelry
in response to a potentially threatening situation was something claimant had
done ten to twenty times before.

Asked if she had ever felt in danger between her arrival at Bedford Hills in
1993 and the subject incident in 1996, claimant responded:

“Yes. It’s a maximum security prison. So the potential for danger
always exists. There’s fights every day, there’s arguments all the
time, people fight, argue over everything, and so you’re constantly in
danger there.” [3]

Correction Officer Pamela Graves was known as Pamela Holmes at the time of the
subject incident. The court will refer to her as “Holmes” to avoid
confusion with inmate Graves. Holmes testified she was working as an escort
officer on the 7:00 a.m. to 3:00 p.m. shift on October 8, 1996. Her duties
included bringing inmates from their housing block to the school building, a
task she completed shortly after 8:00 that morning. At about 9:56 a.m., she
entered the school building in order to get a group of inmates from the library
and escort them back to their housing block. The school building contains
classrooms and offices, including a Sergeant’s office, the
Principal’s office and the Program Committee office, and both security
and civilian personnel. She stated:

“I came into the school building and I looked around, and I didn’t
see the officer at the desk, and I just – it just – I don’t
know, just my own instinct, I just went – I didn’t see anybody, it
was kind of quiet. I opened the area at the door where I know the inmates are
for smoke, and there were a bunch of inmates outside.”
[4]

The officer asked what was going on and the inmates separated and Holmes saw
that Graves had claimant on the ground and was hitting her. She entered an
alarm and told Graves to stop, which she did, and the officer separated the two
inmates. After a “couple of
minutes,”[5] Sgt. Richmond arrived,
followed by the desk officer. After Holmes pulled Graves off claimant, Sgt.
Richmond told Graves to sit against a wall and Holmes picked claimant up and was
assisting her back into the building. Inmate Miller approached from behind and
pushed the officer out of the way and punched claimant. The officer recorded
the incident, the day it happened, as follows:

“At approx 9:56 a.m. I CO P. Holmes upon entering School One I heard loud
voices coming from the back court yard of School One. Upon going outside I CO
P. Holmes witness Inmate M. Graves on top of P. Smart with her right hand
pulling Smart’s hair and with her left hand closed fist punching P. Smart
in the head and face area. I C.O. Holmes with both hands pulled M. Graves off
of P. Smart. At this time Inmate G. Miller 9590491 came up behind me on my
right side pushing me to get at P. Smart. G. Miller with her right hand in a
closed fist hit P. Smart in the left temple area.”
[6]

Holmes’s also issued Graves an Inmate Misbehavior Report in which she
noted that the inmate “was not assigned to School One, nor was she
authorized to be in School One area.” [7]
She testified that when an inmate was out of place, including being at the
school building when she was not supposed to be there, the inmate would be
escorted back to her housing unit by an escort officer, not simply told to go
back or given a pass to go back.

Officer Holmes noted that inmates were generally moved to the school building
via a line that operated from 8:00 to 8:15 in the morning and that an inmate who
arrived at the school after the school line was closed would be considered out
of place. She also testified that inmates were not required to go outside
during smoke break – they could stay in their classrooms or use a bathroom
near the building lobby where the desk officer is posted. She noted that the
desk officer post is not a stationary one. The desk officer is also responsible
to make rounds covering the entire first floor of the building consisting of
about 13 classrooms and offices. When the desk officer is making rounds, there
is no officer monitoring the smoking area, which is just outside from the lobby.
[8] When the officer is at her desk, she can see
through the door out to the smoking area.

Sergeant Clifford Richmond was the Area Sergeant at Bedford Hills on the date
in question, a post that covered the part of the campus that includes the school
building. His duties included making rounds of the area.

Richmond advised that he would first check with the officer in charge, who
would usually be at a desk at the first floor entrance to the building. In
addition to the desk officer, there would normally be officers in the basement,
on the second floor and in the library, as well as the civilian employees who
were also responsible for security. During smoke breaks, the desk officer would
unlock the door to the break area, let out those inmates who chose to go
outside, and then lock the door behind them. The break area was about 30 feet
by 30 feet.

At about 9:56 a.m., Richmond received notification from the Command Center that
there was a “red alert” [9] that had
been called in by Officer Holmes and he proceeded to the area, which he stated
took him 15 to 20 seconds. He saw Holmes on the ground with claimant and Graves
walking away from the area. He directed Graves to sit on the grass with her
back to a wall and went to assist Officer Holmes. Seconds later, Officer McKay,
the desk officer, arrived at the scene. Although he initially stated that he
did not see any blows thrown, after having his recollection refreshed by looking
at the Unusual Incident Report, Richmond testified that at some point, inmate
Miller became involved and began throwing punches at claimant. Miller was then
removed from the scene to a teachers’ lounge.

Richmond noted that, although both Graves and Miller were enrolled in classes
that met in the school building, an inmate who arrived late for class (i.e.,
after 8:15 a.m.) without a pass would be considered out of place. He denied, on
inquiry from claimant’s counsel, that he had seen Graves outside the
school building prior to receiving the emergency call at 9:56 a.m.

Richmond testified that when an inmate is found to be out of place, she would
generally be escorted back to her housing unit by an escort officer, as opposed
to just being told to leave the area. However, he stated it was not a violation
of policy to do the latter and it was a judgment call by the officer how to
proceed. He did agree with claimant’s counsel that the only way to ensure
the inmate gets back to her housing unit would be to provide an escort.

Mona Graves, who along with Ghania Miller, was convicted in criminal court of
the assault on claimant, testified she was late for school the morning in
question, but had no explanation for why she arrived at the school building just
prior to 10:00 a.m., over 1½ hours after the 8:15 a.m. arrival of the
school line at the school building. She stated she did not have a pass because
“when you leave on a school line, you’re not issued a pass. I was
just getting late to my destination.”
1[0] Although she initially denied having
been cited for being out of place – stating she was not out of place
because she was enrolled in a parenting class at the school building –
she later allowed that such a charge might have been included on the same ticket
with the (disciplinary) assault charge, which it was.

Graves testified that when she arrived at the school building, Officer Moultrie
opened the door, asked her for a pass, and refused to allow her to enter the
school building without a pass because she was late. Asked what she did after
Moultrie refused her entry, Graves stated “I was standing in front of the
school. That’s when Sergeant Richmond made me sit in front of –
straight in front of the building.” 1[1]
She claimed she just sat there, waiting for her friends to come outside on smoke
break, and then went over to the smoke break area and she “had a
fight.”1[2] She never stated how the
“fight” started, other than to say “I didn’t take it as
an assault. I thought it was a fight,”
1[3] although she acknowledged that she was
convicted by a jury of second degree assault.

On cross-examination by defense counsel, Graves reiterated that she was
scheduled to be attending her parenting class in the school building and had she
arrived with the rest of the inmates on the 8:00 - 8:15 school line she would
have been freely admitted without a pass. She denied that she went to the smoke
break with the intention of assaulting claimant, and denied that she had ever
had an argument with claimant prior to the subject incident. Although she
admitted having served time in keeplock on prior occasions since her admission
to Bedford Hills in May 1988, she noted that inmates could be sentenced to
keeplock for many different sorts of infractions and denied that she had ever
assaulted an inmate prior to the subject incident.

Graves’s testimony was not particularly enlightening as to the genesis of
the incident that she described, without elaboration, as a “fight”
but which formed the basis of her conviction for intentional assault.
Miller’s and Graves’s reasons for acting as they did are not before
the court.

“The law [governing potential State liability for inmate-on-inmate
assaults] is clear; it is only in its application that difficulty is
encountered.” That characterization was first made by the Court of
Appeals in Flaherty v State of New York (296 NY 342, 346 [1947]) and more
recently reiterated in Sanchez v State of New York (99 NY2d 247, 252
[2002]), where the Court again recognized that the State owes a duty of care to
protect inmates, but reminded that such duty “does not, however, render
the State an insurer of inmate safety” but rather is “limited to
risks of harm that are reasonably foreseeable”(Sanchez, id.
at 253). The Sanchez court reversed a grant of summary judgment to the
State in an inmate assault case, finding that the Appellate Division had defined
foreseeability solely in terms of actual knowledge, a standard that
“precludes additional consideration of the State’s constructive
notice – what the State reasonably should have known – for
example, from its knowledge of risks to a class of inmates based on the
institution’s expertise or prior experience, or from its own policies and
practices designed to address such risks” (Sanchez, id. at
254 [emphasis in original]).

Cases finding State negligence as a cause of an inmate-on-inmate assault
generally find that the claimant has established the requisite element of
reasonable foreseeability based on proof of one of three things: (1) that
defendant knew or should have known that the claimant was at risk of being
attacked,1[4] (2) that defendant knew or should
have known that the assailant was likely to
attack,1[5] or (3) that defendant knew or
should have known that the surrounding circumstances were likely to have
engendered or facilitated an attack. 1[6] As
in any negligence case, claimant must also establish that the precautionary
measures taken by defendant did not rise to the level of due care and that such
was a proximate cause of the assault.
1[7]

There was no proof here of any facts that should have placed the Bedford Hills
staff on notice that claimant was a likely assault victim, and claimant does not
allege otherwise. Indeed, claimant herself indicated that she did not feel she
was at risk of violence, given the normally prevailing atmosphere at this
maximum security facility where threats, arguments and fights were part of the
day-to-day life. There were no facts or circumstances proven from which
defendant’s employees should have been aware that claimant was at any more
risk of violence than any other inmate at the facility.

Claimant does characterize Graves and Miller as “known dangerous
inmates”. She contends it was negligence to allow them “to
participate in unsupervised group gatherings,”
1[8] and she submitted portions of their
disciplinary histories in support of that contention.

The records submitted with respect to Mona Graves reflected only one incident
other than the assault on claimant. She was convicted in 1994 of creating a
disturbance after taking issue with a correction officer who terminated a visit,
prematurely in her eyes, and making threatening remarks to the officer. There
was nothing in that incident from which it could have been reasonably concluded
or foreseen that Graves was any more dangerous or any more likely to assault
another inmate than any of the other convicted felons who make up the Bedford
Hills population. Although Graves acknowledged that she had been sentenced to
terms in keeplock, she noted that such was the result of all sorts of
disciplinary charges involving breaking facility rules, and the mere fact that
an inmate served a term in keeplock did not indicate that any violence or threat
of violence was involved.

Ghania Miller’s disciplinary records, referencing five incidents
including the subject assault on claimant, 1[9]
are somewhat more problematic. In October 1995, she was convicted, upon her
plea of guilty, of punching another inmate in the head during an argument on the
dining room line. She was sentenced to 28 days keeplock and 30 days loss of
privileges. On February 15, 1996, she was convicted of Assault on an Inmate,
Refusing a Direct Order and Threats, but found not guilty of Violent Conduct
arising out of an incident in which she threw a cup of water at another inmate,
who was in her locked cell, and threatened the inmate. Again, she was sentenced
to keeplock and loss of privileges. Six days later, she was convicted of
interfering with an employee, an incident that did not involve any other
inmates. The other incident in the submitted records occurred about one hour
after the subject incident and is obviously not relevant to the question of
notice.

Although the records refer to two prior assaults on other inmates by Miller, in
the disposition of the charges arising out of the assault on claimant, the
hearing officer wrote “this was your fourth assault on an inmate in 375
days.” 2[0] Regardless of whether the
officer was mistaken as to the correct number, or perhaps there was another
incident not part of the records submitted to the court, claimant’s
essential contentions are that Miller’s record is such that defendant
should have been on notice of a propensity to assault other inmates and that it
was negligence to allow her to be in a position to inflict assault, specifically
in the school setting where there is not always constant visual supervision of
the inmates.

In Arteaga v State of New York (72 NY2d 212 [1988]), the Court noted the
“ ‘formidable tasks’ of maintaining order and security in the
correctional facilities and protecting the safety of inmates and
employees” and observed that the Commissioner of Correctional Services has
“broad discretion in the formulation and implementation of policies
relating to security and to the disciplining of inmates.”
2[1] Additionally, defendant is
“obligated to provide a program of education for inmates geared to meet
the objectives set out in Correction Law § 136,”
2[2] which provides that “each inmate
shall be given a program of education which, on the basis of available data,
seems most likely to further the process of socialization and
rehabilitation.”

Leaving aside the fact that Miller was a secondary participant in the assault
on claimant, who was already the victim of a vicious attack by Graves before
Miller added her contribution, this court simply cannot hold that Miller’s
disciplinary record was such that it was negligence for her to be in the
educational setting where she was not subject to constant supervision. Although
she had perpetrated either two or three assaults on inmates prior to the subject
attack, she was disciplined for those incidents, discipline that did not entail
her removal from her educational program. While the court may surmise that
there are circumstances where an inmate’s history of violent behavior is
such that the inmate is deemed unfit to interact with other inmates in
situations with less than constant supervision, i.e. the Bedford Hills school
building, the court was not provided with any evidence as to the standards
applied in such cases. Given the statutory obligation to provide an education
– an objective that may sometimes come into conflict with the need for
safety and security of inmates and staff – the record presented at this
trial was insufficient for the court to substitute its judgment for that
exercised by the officials at Bedford Hills as to when the need to separate a
particular inmate from the general population outweighs the statutory obligation
to provide educational services to all inmates.

Given the absence of any evidence as to standards or practices governing
removal of inmates from educational programs based on a propensity for violent
activity, the court is unable to evaluate where Miller’s record would
stand in relation to such standards. It is quite possible that Miller’s
record was not atypical for inmates at Bedford Hills, and a judicial finding
that her continuation in her educational program constituted negligence, based
on this trial record, would not only substitute the court’s relatively
uninformed judgment for that of correction personnel but would substantially
impair the ability to provide educational services in accordance with the
statutory mandate.

Thus, the court concludes that claimant has failed to establish that the
presence of Graves and/or Miller in the school building on the date in question
was the result of any negligence on the part of defendant’s
employees.

Claimant has two remaining contentions. The first is that Graves should have
been escorted back to her housing block when she arrived at the school building
late, without a pass, and that had such occurred, she would not have been
present in the smoking area with the opportunity to attack claimant. The facts
surrounding this aspect of the events were murky. Specifically, it is unclear
why Graves did not arrive at school on the school line as she was supposed to,
exactly what she was told when she arrived or why she was not escorted back to
her housing block. However, claimant’s contention that the failure to
escort Graves back to her cell was negligence that proximately caused the
subject assault fails for three reasons.

First, although the testimony indicated that it was the usual practice for an
out-of-place inmate to be escorted back to her housing block by an officer, Sgt.
Richmond stated that there was no rule or policy to that effect, and it was up
to the officer’s discretion whether to utilize an escort. Claimant did
not elicit any testimony or other evidence contradicting that assertion. Thus,
while claimant is able to establish a “usual practice” which is
discretionary, she did not establish any rule, directive or statute mandating an
escort and thereby creating a duty which was breached by the defendant.

Second, there was no proof that the Bedford Hills staff should have been aware
of any threat to claimant, or of any threat posed by Graves, and absolutely no
indication that Graves’s late arrival at the school without a pass should
have provided any notice that an altercation with another inmate, much less an
assault on claimant, was impending. Thus, the attack was not in any sense a
foreseeable consequence of the desk officer’s decision to send Graves away
without an escort.2[3]

Finally, the court notes that Graves and Miller were enrolled in classes that
met daily in the school building where claimant was a teacher’s aide.
Thus, their opportunity to assault claimant was not created by the
officer’s decision not to have Graves escorted back to her housing block
on the date in question, but rather existed on a daily basis due to the
proximity of claimant to her assailants regardless of what happened that
morning.

Claimant’s final contention is that the level of security at the school
building, and specifically with respect to the outdoor smoking area, was
insufficient and that such was shown by the length of time it took the officers
to respond and break up the assault. However, it has long been held that the
fact that a correction officer is not present and able to prevent an assault
does not give rise to an inference of negligence, and “unremitting
supervision” of inmates is not required.
2[4] Indeed, although the decision in
Sanchez v State of New York (99 NY2d 247, 254 [2002]) is widely viewed as
expanding the possible bases of State liability for inmate assaults by
clarifying that the foreseeability element may be satisfied by proof concerning
“the institution’s expertise or prior experience, or from its own
policies and practices designed to address such risks”, the Court took
pains to

“underscore that the State’s duty to prisoners does not mandate
unremitting surveillance in all circumstances, and does not render the State an
insurer of inmate safety. When persons with dangerous criminal propensities are
held in close quarters, inevitably there will be some risk of unpreventable
assault, a risk the State cannot possibly eradicate. The mere occurrence of an
inmate assault, without credible evidence that the assault was reasonably
foreseeable, cannot establish the negligence of the
State.”2[5]

When the Sanchez claim was tried, subsequent to the reversal of the
grant of summary judgment to defendant, it was dismissed on the merits,
notwithstanding expert testimony that the level of supervision provided in the
school building at Elmira Correctional Facility (one officer for over 100
inmates in the maximum security facility) was inadequate and notwithstanding
proof of the frequency of inmate assaults at the facility. The dismissal was
affirmed by the Third Department, with the court noting the principle that
absent a showing of dangerousness, unremitting supervision is unnecessary, and
observing that the claimant’s statistics as to the frequency of inmate
assaults “prove only that such facilities are dangerous places where the
possibility of inmate-on-inmate assaults exists. Such general proof is
insufficient to establish that a reasonable probability existed that this
claimant would be attacked at this time and place. In the absence of either
actual or constructive notice, defendant is not liable.”
2[6]

Unlike in Sanchez, claimant here offered no expert proof as to what
penological standards would allegedly suggest as the proper level of supervision
or an adequate officer/inmate ratio. The court is simply asked to infer that
the level of supervision was inadequate from the fact that the assault was
unobserved and from claimant’s subjective estimation of the amount of time
it took for officers to respond. There is no basis in the record for the court
to conclude that one officer responsible for the first floor of the building as
well as the outside areas constituted an inadequate level of security merely
because it was not possible to view the entire area from one vantage point. No
principle or standard was submitted in support of this contention, which, if
sustained, would be the equivalent of requiring the unremitting supervision that
the jurisprudence of this State has long rejected.

Nor can a conclusion that the level of supervision was inadequate be based on
proof of prior incidents at the school building providing notice of a potential
security problem, since there was no such proof, despite the testimony
indicating that approximately 50 inmates congregated in the smoking area on a
daily basis, supervised only by an officer who was also responsible for the
entire first floor of the school building. To the contrary, the only conclusion
to be reached from the evidence at this trial was that the assault on claimant
was not the result of an inadequate level of supervision, or inattention to a
threat posed by Graves or Miller, but rather by the decision of those two
inmates, not foreseeable by defendant’s employees, to perpetrate a
criminal act. While the State owes all inmates the duty of reasonable care for
their safety, it is not the insurer of such safety and liability may only be
predicated on the failure to act with reasonable care to prevent reasonably
foreseeable consequences. Such a conclusion is not justified from this trial
record.

Accordingly, the court finds that claimant has failed to establish negligence
on the part of defendant contributing to the assault upon her, and the Clerk of
the Court is directed to enter judgment of dismissal in accordance
herewith.

1[4].See e.g.Sebastiano v State of
New York (112 AD2d 562 [3d Dept 1985]; Douglas v State of New York
(Ct Cl, Sise, P.J., Claim No. 108585, UID No. 2007-028-012, May 17, 2007;
Collins v State of New York (Ct Cl, Mignano, J., Claim No. 100508-A, UID
No. 2007-029-040, October 5, 2007). Decisions of the Court of Claims not
officially reported are available at the court’s web site –
www.nyscourtofclaims.courts.state.ny.us.

1[5].See e.g. Blake v State of New York
(259 AD2d 878 [3d Dept 1999]; Littlejohn v State of New York (218 AD2d
833[3d Dept 1995].

1[6].See e.g. Sanchez v State of New
York (99 NY2d 247, 254-255 [2002]; Blake v State of New York (259
AD2d 878 [3d Dept 1999]); Huertas v State of New York (84 AD2d 650 [3d
Dept 1981]); Gangler v State of New York (Ct Cl, Midey, J., Claim No.
96352, UID No. 2006-009-159, March 29, 2006).